An afternoon among the patent lawyers [LWN.net]

By Jonathan Corbet
March 21, 2009

Sometimes, even the best job can call for extraordinary sacrifices. Even grumpy editorial jobs. Let it never be said that your editor is unwilling to take one for his readers; why else would he choose to spend four hours in the company of around 100 lawyers gathered to talk about software patents? This event, entitled Evaluating software patents, was held on March 19 at the local law school. The conversation was sometimes dry and often painful to listen to, but it did provide an interesting view into how patent attorneys see the software patent regime in the U.S. The following is a summary of the high points from the four panels held at this event.

Should software patents exist?

It should come as little surprise that a panel full of patent lawyers turns out to be supportive of the idea of software patents. Of all the panellists present, only Jason Mendelson was truly hostile to patenting software, and even he stopped short of saying that they should not exist at all. The first speaker, though, was John Duffy, who cited language in a 1952 update to the patent code stating that "a patentable process includes a new use of an old machine." That language, he says, "fits software like a glove." So there is, he says, no basis for any claims that software patents are not allowed by current patent law.

Beyond that, he says, the attempts to prevent the patenting of software for many years did a great deal of damage. Keeping the patent office away from software prevented the accumulation of a proper set of prior art, leading to the current situation where a lot of bad patents exist. Software is an engineering field, according to Duffy, and no engineering field has ever been excluded from patent protection. That said, software is unique in that it also benefits from copyright protection. That might justify raising the bar for software patents, but does not argue against their existence.

Damien Geradin made the claim that there's no reason for software patents to be different from any other kind of patent. The only reason that there is any fuss about them, he says, is a result of the existence of the open source community; that's where all the opposition to patents comes from. But he showed no sign of understanding why that opposition exists; there is, he says, no real reason why software patents should be denied.

Kevin Luo, being a Microsoft attorney, could hardly come out against software patents. He talked at length about the research and development costs at Microsoft, and made a big issue of the prevalence of software in many kinds of devices. According to Mr. Luo, trying to make a distinction between hardware and software really does not make a whole lot of sense.

Beyond their basis in legislation, patents should, according to the US constitution, serve to encourage innovation in their field. Do software patents work this way? Here there was more debate, with even the stronger patent supporters being hard put to cite many examples. One example that did come up was the RSA patent, cited by Kevin Luo; without that patent, he says, RSA Security would not have been able to commercialize public key encryption. Whether this technique would not have been invented in the absence of patent protection was not discussed.

Mr. Geradin noted that software patents are often used to put small innovators out of business, which seems counter to their stated purpose. But, he says, they can also be useful for those people, giving them a way to monetize their ideas. Without patents, innovators may find themselves with nothing to sell.

Jason Haislmaier claimed, instead, that software patents don't really create entrepreneurship; people invent because that is who they are. And he noted that software patents are especially useless for startup companies. It can currently take something like seven years to get a patent; by that time, the company has probably been sold (or gone out of business) and the inventors are long gone. Jason Mendelson, who does a lot of venture capital work, had an even stronger view, using words like "worthless" and "net negative." He claimed that startups are frequently sued for patent infringement for the simple purpose of putting them out of business.

What's wrong with the patent system?

In general, even the panellists who were most supportive of the idea of software patents had little good to say about how the patent system works in the US currently.

For example, Michael Meurer, co-author of Patent Failure, has no real interest in abolishing software patents, but he argues that they do not work in their current form. Patents are supposed to be a property right, but they currently "perform poorly as property," with software patents being especially bad. That, he says, is why software developers tend to dislike patents, something which distinguishes them from practitioners of almost every other field. Patents are afflicted by vague language and "fuzzy boundaries" that make it impossible to know what has really been patented, so they don't really deliver any rewards to innovators.

Mr. Meurer also noted that software currently features in about 25% of all patent applications. That is a higher percentage than was reached by other significant technologies - he cited steam engines and electric motors - at their peak.

Mark Lemley talked a bit about the effect of software patents on open source software. Patents are a sort of arms-race game, and releasing code as open source is, in his words, "unilateral disarmament." He talked about defending open source with the "white knight" model - meaning either groups like the Open Invention Network and companies like IBM. He also noted that patents provide great FUD value for those opposed to open source.

A related topic, one which came up several times, is "inadvertent infringement." This is what happens when somebody infringes on a patent without even knowing that it exists - independent invention, in other words. John Duffy said that the amount of inadvertent infringement going on serves as a good measure of the health of the patent system in general. In an environment where patents are not given for obvious ideas, inadvertent infringement should be relatively rare. And, in some fields (biotechnology and pharmaceuticals, for example), it tends not to be a problem.

[PULL QUOTE: Actual copying of patented technology is only alleged in a tiny fraction of software patent suits. In other words, most litigation stems from inadvertent infringement. END QUOTE] In the software realm, though, inadvertent infringement is a big problem. Mark Lemley asserted a couple of times that actual copying of patented technology is only alleged in a tiny fraction of software patent suits. In other words, most litigation stems from inadvertent infringement. Michael Meurer added that there is a direct correlation between the amount of money a company spends on research and development and the likelihood that it will be sued for patent infringement. In most fields, he notes, piracy (his word) of patents is used as a substitute for research and development, so one would ordinarily see most suits leveled against companies which don't do their own R&D. In software, the companies which are innovating are the ones being sued.

The other big problem with the patent system is its use as a way to put competitors out of business. Rather than support innovation, the patent system is actively suppressing it. Patent litigator Natalie Hanlon-Leh noted that it typically costs at least $1 million to litigate a patent case. John Posthumus added that no company with less than about $50 million in annual revenue can afford to fight a patent suit; smaller companies will simply be destroyed by the attempt. Patent lawyers know this, so they employ every trick they know to stretch out patent cases, making them as expensive as possible.

Variation between the courts is another issue, leading to the well-known problem of "forum shopping," wherein litigators file their cases in the court which is most likely to give them the result they want. That is why so many patent suits are fought in east Texas.

What is to be done about it?

Michael Muerer made the claim that almost every industry in the US would be better off if the patent system were to be abolished; in other words, patents serve as a net drain on the industry. But, being a patent attorney, he does not want to abolish the patent system; instead he would like to see reforms made. His preferred reforms consist mostly of tightening up claim language to get rid of ambiguities and to reduce the scope of claims. He would like to make the process of getting a patent quite a bit more expensive, putting a much larger burden on applicants to prove that they deserve their claims.

Mr. Muerer went further and singled out the independent inventor lobby as being the biggest single impediment to patent reform in the US. In particular, their efforts to block a switch from first-to-invent to first-to-file priority (as things are already done in most of the rest of the world) has held things up for years. What the lobby doesn't realize, he says, is that if the patent system works better for "the big guys," they will, in turn, be willing to pay more for patents obtained by the "little guys." This sort of trickle-down patent theory was not echoed by any of the other panelists, though.

Part of the problem is that the US patent and trademark office (PTO) is overwhelmed, with a backlog of over 1 million patent applications. So patent applications take forever, and the quality control leaves something to be desired. Some panellists called for funding the PTO at a higher level, but this is unlikely to happen: the number of patent applications has fallen in recent times, and there is a possibility that some application fees will be routed to the general fund to help cover banker bonuses and other equally worthy causes. The PTO is likely to have less money in the near future.

And, in any case, does it make sense to put more money into the PTO? Mark Lemley is against that idea, saying that the money would just be wasted. Most patents are never heard from again after issuance; doing anything to improve the quality of those patents is just a waste. Instead, he (along with others) appears to be in favor of the "gold-plated patent" idea.

Gold-plated patents are associated with another issue: the fact that, in US courts, patents have an automatic presumption of validity. This presumption makes life much easier for plaintiffs, but, given the quality of many outstanding patents, some people think that the presumption should be revisited and, perhaps, removed. Applicants who think they have an especially strong patent could then apply for the gold-plated variety. These patents would cost a lot more, and they would be scrutinized much more closely before being issued. The idea is that a gold-plated patent really could have a presumption of validity.

Others disagree with this idea. Gold-plated patents would really only benefit companies that had the money to pay for them; everybody else would be a second-class citizen. Anybody who was serious about patents would have to get them, though; they would really just be a price hike in disguise.

There was much talk of patent reform in Congress - but little optimism. It was noted that this reform has been held up for several years now, with no change in sight. There was disagreement over who to blame (Mark Lemley blames the pharmaceuticals industry), but it doesn't seem to matter. John Duffy noted that the legislative history around intellectual property is "not charming"; he called the idea that patent law could be optimized a "fantasy." Mark Lemley agreed, noting that copyright law now looks a lot like the much-maligned US tax code, with lots of specific industry rules. Trying to adapt slow-moving patent law to a fast-moving industry like software just seems unlikely to work.

What Mark suggests, instead, is to reform patent law through the courts. Indeed, he says, that is already happening. Recent rulings have made preliminary injunctions much harder to get, they have raised the bar for obviousness, restricted the scope of business-model patents, and more. Most of the complaints people have had, he says, have already been fixed.

John Duffy, instead, would like to "end the patenting monopoly." By this he means the monopoly the PTO has on the issuing of patents. Evidently there are ways to get US-recognized patents from a few overseas patent offices now, and those offices tend to be much faster. He also likes the idea of having private companies doing patent examination; this work would come with penalties for granting patents which are later invalidated. Eventually, he says, we could have a wide range of industry-specific patent offices doing a much better job than we have now.

Conclusion

There was a brief discussion of the practice of not researching patents at all with the hope of avoiding triple damages for "willful infringement." The participants agreed that this was a dangerous approach which could backfire on its practitioners; convincing a judge of one's ignorance can be a challenge. But it was also acknowledged that there is no way to do a full search for patents which might be infringed by a given program in any case.

All told, it was a more interesting afternoon than one might expect. The discussion of software patents in the free software community tends to follow familiar lines; the people at this event see the issue differently. For better or worse, their view likely has a lot of relevance to how things will go. There will be some tweaking of the system to try to avoid the worst abuses - at least as seen by some parts of the industry - but wholesale patent reform is not on the agenda. Software patents will be with us (in the US) for the foreseeable future, and they will continue to loom over the rest of the world. We would be well advised to have our defenses in place.

An afternoon among the patent lawyers

Posted Mar 21, 2009 19:45 UTC (Sat) by gerv (guest, #3376) [Link] (28 responses)

It should come as little surprise that a panel full of patent lawyers turns out to be supportive of the idea of software patents.

Although the editor's record of the discussion doesn't seem to reflect that summary. A lot of people seemed to have a lot negative to say about patents.

The point about using the level of inadvertent infringement as a measure of the amount the patent system promotes innovation is really powerful. The anti-patent lobby should add that argument to their arsenal. If lots of people are being sued for independent inventions, it's a really good indicator that the law is restricting rather than enabling innovation.

An afternoon among the patent lawyers

Posted Mar 21, 2009 20:36 UTC (Sat) by boog (subscriber, #30882) [Link] (1 responses)

Along the same lines, it is worth restating the point that one of the principal aims of a patent is (was...) the publication of the information it contains, allowing new inventions to build upon the invention disclosed. However, in the case of software, not only does nobody ever read patents, I doubt very much anyone could extract any useful programming information from one even if they tried.

I suspect this is true of fields beyond software. I have taken to appending "-patent" to my google searches for information, such is the volume of useless patent crap thrown up.

An afternoon among the patent lawyers

Posted Mar 26, 2009 4:38 UTC (Thu) by cpeterso (guest, #305) [Link]

in the case of software, not only does nobody ever read patents, I doubt very much anyone could extract any useful programming information from one even if they tried.

My employer's legal department urges software developers not to read patents. Patent owners can sue for bigger damages if they can show that the violator had read the patent, thus having "knowingly" infringed.

An afternoon among the patent lawyers

Posted Mar 23, 2009 12:47 UTC (Mon) by nelljerram (guest, #12005) [Link] (25 responses)

Good idea, but I think the argument is slightly trickier than that. The patent system must be designed to catch some level of inadvertent infringement - or else it would become equivalent to copyright.

Therefore, to deploy this argument, you'd first need to get clear agreement on what the designed level of independent invention is, then show that the level in software is much higher than that.

An afternoon among the patent lawyers

Posted Mar 24, 2009 7:28 UTC (Tue) by man_ls (guest, #15091) [Link] (24 responses)

I thought that the patent system was designed to make inventors publish their inventions, and to make manufacturers learn about those inventions and implement them -- while rewarding the original inventors. Copyright has nothing to do with this goal -- for starters you don't have to publish your "invention". You can just distribute a closed binary and nobody will learn your amazing RSA algorithm.

Independent discovery is not required at all. In a perfect world all inventors would be working in different things with no overlap -- and once an invention is published nobody would work in it anymore. The perfect level of independent invention is zero. That is, as I understood, essentially what happens in the pharma industry. The chances of two companies patenting the same molecule are so slight as to be negligible, unless there is industrial espionage or something.

An afternoon among the patent lawyers

Posted Mar 24, 2009 19:39 UTC (Tue) by nelljerram (guest, #12005) [Link] (16 responses)

That's an admirable picture, and it would be great if you could get most pro-patent people to agree with it. I'm not sure you could though; for example, if that was the prevailing picture, what would be the point of the first-to-invent vs. first-to-file debate?

Ideal worlds

Posted Mar 24, 2009 20:39 UTC (Tue) by man_ls (guest, #15091) [Link] (15 responses)

Indeed. Of course there is going to be some level of independent discovery, but in this ideal world it should be anecdotical. However, with the current US system it is guaranteed to be very high -- not only that big companies file nonsense applications ("method and apparatus to put a computer on a car dashboard", blargh!), but because of triple punitive damages. What kind of incentive to learn from patents is that?

Ideal worlds

Posted Mar 27, 2009 18:30 UTC (Fri) by giraffedata (guest, #1954) [Link] (14 responses)

I believe both the independent invention non-defense and the first to file vs first to invent questions are strictly questions of legal practicality -- making patents enforceable.

As for people not reading patents because of the punitive damages for willfully infringing one, I'm starting to believe that doesn't really happen to any significant extent. I've read the anecdotes in LWN comments about this, but what the panel in this article said makes more sense: by not reading patents, you slightly reduce your chance of being found liable for willful infringement that you didn't do, but you greatly increase your chance of infringing. The factor of three difference in damages looks very small by comparison.

And I'll bet it takes a lot more evidence to prove punishable willfulness than that the defendant browsed a database containing the patent at some time in his career.

Patent browsing

Posted Mar 27, 2009 19:25 UTC (Fri) by man_ls (guest, #15091) [Link] (12 responses)

You are the expert, but I have got the idea that infringement is unavoidable for every substantial program. Take for example the Microsoft patents in the TomTom case: they have patented "computer on dashboard", "computer in car", "navigation on computing device" and "collapse big name to short name". I am sure they have also patented "computer in plane", "computer on motorbike", "computer on boat" and so on. Innovation: zero. Risk of infringement: close to one. Decreased risk by reading patents: none.

Another example: according to Microsoft Linux infringes 235 patents. Now I would bet good money that no prominent Linux developer has spent any time reading Microsoft patents, but do you really believe that reading them would have reduced that number significantly? Remember the story about IBM lawyers paying a little visit to Sun.

Meanwhile there is the issue of practicality. Given that most patents are absurd and that there are seven millions of them on Google, who can spend any time browsing the databases? Even a targeted search easily turns out hundreds of them on the most abstruse subjects.

When a big patent-holding company is after you there is little you can do. Reading patents is no defense. For smaller companies -- there are too many of them.

Patent browsing

Posted Mar 27, 2009 20:04 UTC (Fri) by jd (guest, #26381) [Link] (1 responses)

This reminds me of the RIAA case recently discussed, where the defendant applied for a Rule 11 motion. As I understand it, this means that if the plaintiff abuses the system and getting a slap on the wrist hasn't fixed it in the past, the judge can do just about anything short of hang, draw and quarter.

Would there not be some means of deterring abusive software patent cases (and abusive software patents) by using this? There are plenty of big company vs. big company software patent suits, and big companies are in a position to fight the way small ones can't. Let us imagine that in such a case, the defendant argues the case is a fraud and invokes Rule 11. Let us also say this (by some miracle) succeeds. One would think that the plaintiff would then have a much higher burden of proof in future cases, even to get past the "it's a frivolous lawsuit" stage.

Of course, that's merely how I'd imagine it would work - if a judge rules that a company is crying wolf a lot, that company couldn't simply claim that future patent cases should be assumed to be valid, regardless of how the system would normally look at it. If anything, I would imagine such a ruling might carry the added penalty that all future cases be assumed invalid unless demonstrated otherwise.

I do see a drawback in this, though, even if it could work. Why would any big company invoke a rule and start a trend that could ruin its own standing? Many companies file and defend suspect patents, so almost no company has any incentive to draw attention to that fact.

FRCP Rule 11 and patent prosecution

Posted Mar 28, 2009 16:37 UTC (Sat) by giraffedata (guest, #1954) [Link]

Would there not be some means of deterring abusive software patent cases (and abusive software patents) by using this? There are plenty of big company vs. big company software patent suits, and big companies are in a position to fight the way small ones can't. Let us imagine that in such a case, the defendant argues the case is a fraud and invokes Rule 11. Let us also say this (by some miracle) succeeds. One would think that the plaintiff would then have a much higher burden of proof in future cases, even to get past the "it's a frivolous lawsuit" stage.

Well, Rule 11 is intended for a fundamentally different thing: it says you can't abuse the court system to harrass someone, and it applies to attorneys, not litigants. An attorney who files a petition with no intention of it being granted can be punished. But there's no way a court is going to be prejudiced against a plaintiff because his attorney previously abused the system. A person's day in court is sancrosanct in American justice.

I don't think we've seen things in patent prosecutions that are like the RIAA lawsuits -- where a big guy sues a little guy and doesn't actually have to have a case because the little guy can't afford to defend. The patent cases I read about all seem to be against big guys. So a rule 11 claim that the only purpose of the filing is to cost the defendant legal fees would be hard to press.

Patent browsing

Posted Mar 27, 2009 23:51 UTC (Fri) by giraffedata (guest, #1954) [Link] (9 responses)

I have got the idea that infringement is unavoidable for every substantial program.

Two things wrong with this statement:

It's not infringement in the patent is invalid, which most of these are. The press reports are about filings, issuances, and lawsuits -- rarely successful enforcement. We don't even know if there's infringement in the TomTom case yet.
It's not infringement if you buy a license, which you can do once you know the patent exists.

according to Microsoft Linux infringes 235 patents. Now I would bet good money that no prominent Linux developer has spent any time reading Microsoft patents, but do you really believe that reading them would have reduced that number significantly?

But what about the people actually risking infringement liability? IBM, for example, ships its own version of the Linux kernel in its embedded devices. I don't know how it differs from kernel.org, but rumor has it IBM expended some effort to determine if the kernel.org version infringes patents and omit parts that might.

You are the expert,

No, I'm not. I'm a contract lawyer with a side interest in computers. Virtually everything I know about patent law I learned from LWN.

Patent browsing

Posted Mar 28, 2009 0:06 UTC (Sat) by man_ls (guest, #15091) [Link] (8 responses)

I am not trying to argue for argument's sake, but this is actually an interesting discussion, at least to me.

It's not infringement in the patent is invalid, which most of these are.

If it was easy to determine if a patent is valid or not, then validity would matter. As shown in the FAT patent it isn't so it doesn't: PUBPAT tried for several years to get this stupid patent invalidated and in the end failed. True, it was against Microsoft, but in an ideal world (and we were talking about one) the size of the adversary should not matter but who is ultimately right.

IBM, for example [...]

Whoa whoa whoa. It's not "IBM for example...", but "IBM (which is probably the only company in the world with enough resources to do this)..." IBM probably employed a number of patent lawyers for some time to do this job, and it is part of their work to read patent applications. But this job still does not fulfill the stated objective of patents, which is to publicize inventions -- I doubt any of these patent lawyers approached an IBM engineer and suggested "hey, I read about an interesting algorithm, let's get a license and use it for our next project".

And besides IBM has the largest stockpile of patents around, so they probably don't care too much unless the patent is really prominent.

Patent browsing

Posted Mar 28, 2009 2:38 UTC (Sat) by giraffedata (guest, #1954) [Link] (7 responses)

I am not trying to argue for argument's sake, but this is actually an interesting discussion, at least to me.

Me too, but the argument might be wandering. I thought we were talking about whether the strategy of deliberately not reading patents to reduce one's patent infringement liability works, and consequently whether people actually do it. You're also talking about ideal worlds and the stated objective of patent law.

It's not "IBM for example...", but "IBM (which is probably the only company in the world with enough resources to do this)..."

I don't think IBM is that big for the purposes of this discussion. The size that matters is the revenue the company can expect to generate by using a Linux kernel. IBM's entire hardware revenue is only something like 20% of the company's, and only a few products contain Linux. I think Cisco might have more money than IBM to spend on Linux legal work.

But if the situation is as bad as you say -- that there's just no way to know until you've lost a lawsuit whether your software product infringes a patent, then it probably doesn't matter how much you spend on a patent search, and then you might as well cut your risk a little by maintaining ignorance of all patents.

I doubt any of these patent lawyers approached an IBM engineer and suggested "hey, I read about an interesting algorithm, let's get a license and use it for our next project".

Actually, I don't think anyone ever intended the patent files to be used that way -- the patents themselves aren't written to be enlightening. I think the model was that an engineer would see that Windows boots twice as fast as AIX and call up Microsoft and ask how it does it. Microsoft happily tells him, gives him the patent number, and quotes a price to use it. An IBM lawyer checks the patent to make sure it really does cover the method described, then recommends payment. Or maybe the IBM engineer reads an article by a Microsoft engineer in a technical journal.

Patent browsing

Posted Mar 28, 2009 10:49 UTC (Sat) by man_ls (guest, #15091) [Link] (6 responses)

You're also talking about ideal worlds and the stated objective of patent law.

I just don't want to lose track of the original discussion: whether it is worth reading patents or not. There are pros and cons; the cons are triple damages and extreme boredom, while the pros include being able to avoid filed patents -- but also learning new tricks or finding technnical solutions to existing problems.

Actually, I don't think anyone ever intended the patent files to be used that way -- the patents themselves aren't written to be enlightening.

You will not mind an engineer to quote the law... 35 USC 112 says:

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

It should be enough for making a working prototype. It is true that there may be things missing, like failure modes. According to the wikipedia article, which is actually very informative:

In some countries there are requirements for providing specific information such as the usefulness of the invention, the best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention

These requirements look more complete than the US ones. However I would imagine that an inventor would want prospective licensors to get as much as possible from the patent application alone, without any direct intervention.

Patent browsing

Posted Mar 29, 2009 20:55 UTC (Sun) by oak (guest, #2786) [Link] (5 responses)

> I just don't want to lose track of the original discussion: whether it
> is worth reading patents or not. There are pros and cons; the cons are
> triple damages and extreme boredom, while the pros include being able
> to avoid filed patents

So you need to go through also patent applications, not just granted
patents? The currently granted patents might be bad, but they're nothing
compared to the crapola in applications and according to the article, they
may take seven years to process... During this time you have no idea
whether they will be valid unless you do yourself reasonable "prior art"
search and guess.

Patent browsing

Posted Mar 29, 2009 21:58 UTC (Sun) by man_ls (guest, #15091) [Link] (4 responses)

Well, you could make the argument that patents not granted are an untapped source of great ideas... but I am not even sure they can be browsed. No, I meant patent applications that have been granted, sorry.

Patent browsing

Posted Mar 29, 2009 22:12 UTC (Sun) by giraffedata (guest, #1954) [Link] (3 responses)

I think oak's point is that if you want to avoid inadvertently using a patented invention, you also have to know about the things that have already been invented, but not yet had patents issued.

That would entail knowing not only about the filed but not yet granted patents, but also the inventions that haven't even been filed yet (you have a year after invention to do so).

Just like the unfiled inventions, you can't know about the filed but not granted ones either, because an essential part of the system is that patent applications are confidential. That way, until the patent issues -- and forever if it never does issue -- the inventor can still have his monopoly via trade secret.

This is the source of the "submarine patent" controversy. Some inventors deliberately slow down the patent application process to give competitors lots of time to independently invent, and grow a dependency on the invention, and then when the patent finally issues, it's worth a lot more.

Patent browsing

Posted Mar 29, 2009 22:36 UTC (Sun) by man_ls (guest, #15091) [Link]

As Colonel Kurtz in Apocalypse Now, the more I learn about software patents the more I want to write in big bold letters: Drop the bomb, exterminate them all. So glad we don't have them in the EU.

Patent browsing

Posted Mar 30, 2009 19:22 UTC (Mon) by oak (guest, #2786) [Link] (1 responses)

> Just like the unfiled inventions, you can't know about the filed but not
granted ones either, because an essential part of the system is that
patent applications are confidential.

Even if they would be available, as they haven't been prior-art-filtered
they would probably cover all kinds of stuff in your own software, i.e. in
practice it would be pretty useless.

Basically I consider patenting as rigged game of PTO & court roulette
where the "House" (of lawyers) always wins.

Patent browsing

Posted Mar 30, 2009 21:03 UTC (Mon) by man_ls (guest, #15091) [Link]

You are assuming that prior art screening somehow works, when everything points to its pervasive failure. I think that granted patents do cover all kinds of stuff in our own software, as it is. You have probably seen what happens here on LWN every time a software patent is discussed: commentators routinely find prior art quite relevant to the patent. It follows that it is useless to browse not only applications, as you correctly state, but any patents issued by the USPTO.

Ideal worlds

Posted Apr 11, 2009 0:00 UTC (Sat) by hozelda (guest, #19341) [Link]

>> As for people not reading patents because of the punitive damages for willfully infringing one, I'm starting to believe that doesn't really happen to any significant extent.

I have read a few claims of a few patents and they are all garbage. 20 year monopoly my arse. And talk about broad ( http://www.linuxtoday.com/news_story.php3?ltsn=2009-04-08... ).

I think developers might look at a patent when they know of issues and want to bypass it. At least that is what I suspect about many FOSS developers.

An afternoon among the patent lawyers

Posted Mar 26, 2009 3:12 UTC (Thu) by jmorris42 (guest, #2203) [Link] (3 responses)

> In a perfect world all inventors would be working in different things
> with no overlap -- and once an invention is published nobody would
> work in it anymore.

Except you can't actually look at the existing patents without peril in the current bizarro world. But there is a fix, one that would totally fix the patent system, most free software types would even probbaly support it. Ok, RMS probably wouldn't....

Patents are supposed to promote progress, the system discourages it because nobody CAN know what is patented, even if it didn't expose one to triple damage there are so fracking many of them and they are written to be as UNCLEAR as possible.

So what if the system were reformed to fix all of those problems in one whack? Set a hard limit on how many patents can be granted per year, say 1000. In one change you fix almost all of the problems. Patents would only be granted for real innovative new things. No field would likely see more than a hundred per year that would affect them so over the ~20 year life there wouldn't be more tnan 2K patents, almost certainly fewer, to need to be aware of. The professional journals for the major professions would get in the habit of announcing all of the patents likely to impact their field along with contact info to license. After all it would only be a couple per month. With so few being granted, and all for real inventions, there wouldn't be the same urge to obfuscate the applications.

Public key crypto would have had a patent, it would probaly have covered Public Key Crypto in general (not just RSA) for the ~twenty years because it really was a groundbreaking invention. And everyone would KNOW about that patent, for good or ill and kept an expiration watch on it. And the patent holders would have become insanely wealthy.

Why not go all the way

Posted Mar 26, 2009 7:15 UTC (Thu) by man_ls (guest, #15091) [Link]

Not bad, and certainly better than current US software patents; but given the choice I still prefer to have no software patents. On the other hand in fields where they are really needed (er, I don't know, myriapod leg counting) they might discourage research.

An afternoon among the patent lawyers

Posted Mar 26, 2009 13:18 UTC (Thu) by pboddie (guest, #50784) [Link]

So what if the system were reformed to fix all of those problems in one whack? Set a hard limit on how many patents can be granted per year, say 1000.

But this is the kind of apology we hear from the patent lobby, suggesting the quick fix that supposedly makes everything alright before we get back to "business as usual". And it continues down the path of flawed reasoning and invalid assumptions that patentability should naturally extend to all domains. It's very clear that aside from the objections to granting monopolies on mathematics and scientific discoveries, there are huge practical issues with granting monopolies that can be regarded as fair and justified in the domain of software and computer science.

Public key crypto would have had a patent, it would probaly have covered Public Key Crypto in general (not just RSA) for the ~twenty years because it really was a groundbreaking invention.

It was a discovery, not an invention, the foundations of that work were put down one hundred years earlier, and some other people made similar discoveries independently, coincidentally at around the same time.

Given that people generally can't suggest anything more significant than public-key cryptography as something worthy of a patent, maybe it would be more honest if instead of granting monopolies for "groundbreaking" works, governments should just offer rewards for these apparently rare occasions and make the works genuinely accessible, following the example of the purchase of Daguerre's work on photography and its subsequent release into the public domain.

An afternoon among the patent lawyers

Posted Mar 26, 2009 14:50 UTC (Thu) by iabervon (subscriber, #722) [Link]

Public key crypto would have had a patent, it would probaly have covered Public Key Crypto in general (not just RSA) for the ~twenty years because it really was a groundbreaking invention.

US patent 4200770 covered public key crypto in general for 20 years from approximately when the inventors disclosed their idea and revolutionized cryptography. The main issue is that they disclosed their idea more than a year before applying for the patent, so that, although it was granted, it probably wouldn't have stood up in court, and they seem never to have particularly done anything with it. Beyond that, largely by chance, the invention was very interesting but not widely used until 20 years after they came up with the idea (when Netscape made a secure version of SSL).

An afternoon among the patent lawyers

Posted Mar 26, 2009 16:57 UTC (Thu) by zlynx (guest, #2285) [Link] (2 responses)

"You can just distribute a closed binary and nobody will learn your amazing RSA algorithm."

That isn't true at all. Disassembly tools can make a binary pretty easy to read.

An afternoon among the patent lawyers

Posted Mar 26, 2009 19:19 UTC (Thu) by man_ls (guest, #15091) [Link]

Hmmm, true. Let's say "your algorithm will be protected from casual inspection", which is the opposite of the purpose of a patent. In fact most patents are so trivial that they are transparent ("method and apparatus for displaying a trash icon on the desktop", bleach!): source code is not necessary at all. But then copyright doesn't cover anything like that, unless you refer to the specific arrangement of the pixels.

An afternoon among the patent lawyers

Posted Apr 10, 2009 23:34 UTC (Fri) by hozelda (guest, #19341) [Link]

You're talking about studying a small contained piece of code that doesn't change frequently.

An afternoon among the patent lawyers

Posted Mar 21, 2009 21:38 UTC (Sat) by Cyberax (✭ supporter ✭, #52523) [Link]

'What the lobby doesn't realize, he says, is that if the patent system works better for "the big guys," they will, in turn, be willing to pay more for patents obtained by the "little guys."'

I feel dirty just from reading this.

R, S, and A did not invent RSA

Posted Mar 22, 2009 0:02 UTC (Sun) by JoeBuck (subscriber, #2330) [Link] (4 responses)

Defenders of software patents consistently trot out RSA as an invention that merited a patent, but one problem with the argument is that RSA was independently discovered (or "invented") twice, and the first time was by Clifford Cocks, three years before Rivest, Shamir, and Adleman did. But since Cocks worked for the GCHQ, the British equivalent of the US NSA, the work was classified, and it's unclear whether British intelligence ever did anything with Cocks' work.

The contribution of the RSA team was to disclose their invention to the public, and they didn't need the incentive of a patent to do this; they were academics, working in a publish-or-perish environment.

R, S, and A did not invent RSA

Posted Mar 22, 2009 10:15 UTC (Sun) by NAR (subscriber, #1313) [Link] (3 responses)

From one of those show on Discovery I think the British in fact used RSA do encrypt communication.

R, S, and A did not invent RSA

Posted Mar 23, 2009 17:11 UTC (Mon) by zooko (guest, #2589) [Link] (2 responses)

For what it is worth, according to Steven Levy's book "Crypto", Clifford Cocks once said to Whit Diffie something like "You fellows did much more with it than we ever did.". My assumption is that Cocks's invention lay unused in the GCHQ archives. Public key cryptography was such a crazy, paradigm-shifting invention that it was dismissed as nonsense by experts for a long time. (Ralph Merkle got a low grade from his prof on his thesis which was the first publication of public key encryption: http://www.merkle.com/1974/ .)

But actually the point that the original commentator -- Kevin Luo -- made wasn't that patents led to the *invention* of public key cryptography, but rather to the *commercialization* of public key cryptography. Having been involved in that field during that era, as an amateur enthusiast and as a professional, I would think that the RSA patent inhibited commercialization of public key cryptography more than it facilitated it, but it is hard to tell. Other people, including people who had more experience than me, might come to the opposite conclusion.

R, S, and A did not invent RSA

Posted Mar 23, 2009 20:28 UTC (Mon) by MattPerry (guest, #46341) [Link]

> Ralph Merkle got a low grade from his prof on his thesis which was the
> first publication of public key encryption: http://www.merkle.com/1974/

That's not correct according to link you gave.

R, S, and A did not invent RSA

Posted Mar 27, 2009 20:24 UTC (Fri) by jd (guest, #26381) [Link]

It's very hard to say. Certainly, iPGP (international PGP) was in much wider use than the US' PGP (which -was- covered by RSA's patent) and iPGP seems to have been the foundation for GnuPG rather than PGP 5 or later. The international version was not covered by patents and used no code from companies that had them, re-implementing anything that was suspect. There are also heavily-patented public crypto methods (Quartz is one) that have virtually no usage at all.

I would be inclined to say, then, that the case for patents helping public key crypto is - as the Scots would say - "case unproven". Whatever examples there might be for RSA's patent helping things, it looks to me like there are just as many examples where RSA's patent inhibited work and where work was exported to where the patent issues didn't apply.

GCHQ dropping the ball doesn't sound that unusual to me, and from what very little I know of British military and intelligence encryption practices of the time, they seemed to be using synchronized one-time pads which, I assume, means there was additional randomness in the form of what bits of tape were actually used. If I'm right on that, public key might well have looked weaker than what they already had. (Whether it was is dependent on what they actually did in practice, and I don't see GCHQ being too forthcoming on that even when the 50 year rule is up.)

Draw the line at mathematics, not software

Posted Mar 22, 2009 0:20 UTC (Sun) by JoeBuck (subscriber, #2330) [Link] (5 responses)

I believe that software patents are deeply harmful, but I don't think that just the fact that software is used should put an implementation on one side of the line, while the lack of a programmable processor should put an implementation on the other. After all, what's an FPGA? It's a programmable device with a rather unconventional (for software people) instruction set, where each of a large number of basic components are programmed to perform one of a small set of basic logic operations. And likewise, almost all digital devices have their function specified in the form of a programming language (Verilog or VHDL), or even in some cases in C/C++. I think that the line should be drawn, not between "hardware" and "software", which are increasingly fuzzy categories, but between processes that produce physical objects or transform matter, and between processes that simply convert one mathematical object (a series of numbers or characters or pixels or detected events) into another. A codec shouldn't be patentable because it is a mathematical transformation, and this shouldn't depend on whether an ASIC or an assembly language routine is used. Likewise, a compiler that converts strings (of high level language) to strings (of assembler language) should be exempt from patents; copyright and trade secret protection would be allowed, however.

But there's no problem patenting essential steps in (for example) the fabrication of silicon wafers; this is a transformation of matter, which has certain irreducible costs, and assessing patent licensing fees on a per-manufactured-unit basis is no problem. And if the fab equipment carries out these steps by a program that runs the equipment, no matter; the fact that the control operation takes place in software shouldn't let the fab escape licensing the patent.

Draw the line at mathematics, not software

Posted Mar 22, 2009 6:24 UTC (Sun) by vleo (guest, #32027) [Link] (3 responses)

What if the very same algorithm is implemented as a) software (in C++ say) b) FPGA (in VHDL) c) as a digital circuit build from standard 74x logic (based on the same VHDL, and there may be software that translates such VHDL into a netlist) d) ASIC (using standard elements, from VHDL again)?

Why these implementations should have different patent/copyright regime?

Fixing the US patent/copyright system shall stem from the spirit of what US Constitution says on that. First of all - all these protections are optional. Secondly, they should really advance the art/knowledge.

One simple solution for software only - exclude all Free Software from patent restrictions, still counting it is as prior art and keeping the GPU/GPL copyright protection on Free code reuse. If it's Free Software implementation - it is by definition benefiting the society as a whole, certainly stays forever as part of human civilization body of knowledge/art, and is not likely to make anybody overly rich just by being at the right place at the right time and using Govt. resources (enforcing laws beneficial only to certain entities), but only by the way of constant application of individual and/or collective (corporate) effort, which, ideally, should be true for any other economic activity as well...

Draw the line at mathematics, not software

Posted Mar 22, 2009 8:51 UTC (Sun) by AndyBurns (guest, #27521) [Link] (2 responses)

"Why these implementations should have different patent/copyright regime?"

I beleive he is saying they should all be treated the same, i.e. as not patentable, because whatever the implementation they just transform logical inputs into logical outputs, rather than manufacture or transform a physical product.

Drawing the line at what is infringement

Posted Mar 22, 2009 15:04 UTC (Sun) by dmarti (subscriber, #11625) [Link] (1 responses)

The other approach is not to try to define what is a software patent, but to declare that certain acts are not infringement. IIRC, surgical techniques are patentable, but Congress says that an individual surgeon working on a patient is not infringing. It might be useful to have something similar apply to certain acts of software conveyance.

The founder of one open-source group at a large IT company told me that their corporate counsel decided that his group is not, for purposes of patent law, "making" a program that implements a patented algorithm -- they're just describing it in source code format, and the user "makes" it when he or she types "make."

(Why does a bunch of patent lawyers arguing against a software patent ban sound like a bunch of rats arguing against the use of galvanized metal in grain storage?)

Drawing the line at what is infringement

Posted Mar 23, 2009 7:36 UTC (Mon) by xoddam (subscriber, #2322) [Link]

A sane and sound solution, without seeming too radical for the court system to implement with a few well-aimed decisions. Thanks.

Draw the line at _Infringement_

Posted Mar 22, 2009 10:45 UTC (Sun) by k3ninho (subscriber, #50375) [Link]

It's a nice idea, but won't fix the mess. I think that the important issue is to deny a patent-holder the right to sue a software-writer for infringement of a patent. The people who embody the algorithm in a program should be immune to litigation; the people who assemble a computer system to run the algorithm should be immune to litigation; the people who use the computer system running the algorithm should also be immune. In the case that you can't protect the end-users, the software patentee is driven to sue customers, which hasn't been a success for the RIAA suing music-appreciating members of the public.

Additionally, another objection to an embodiment of an algorithm in a computer system (no matter how large the system or widely distributed its components) is that any invention using a fixed set of memory manipulated by a fixed set of mathematical operations is that the end result is obvious from the starting point. Moreover, a given set of operations from a given starting point could infringe two different patented algorithms, which means that a patent would be infringed by the *meaning* of the transformation rather than a technical contribution or the resulting physical transformation.

An afternoon among the patent lawyers

Posted Mar 22, 2009 7:06 UTC (Sun) by sitaram (guest, #5959) [Link] (1 responses)

> "[...] be routed to the general fund to help cover banker bonuses and other equally worthy causes"

I'm surprised no one commented on this. In the middle of all the seriousness, Jon manages to raise a loud laugh (from me anyway)!

An afternoon among the patent lawyers

Posted Apr 3, 2009 11:25 UTC (Fri) by Duncan (guest, #6647) [Link]

I noticed that too, and marked it as yet another case of our esteemed
grumpy editor's (in)famous humor. I'm glad there's someone else I can
share the humor with.

Duncan

An afternoon among the patent lawyers

Posted Mar 22, 2009 16:03 UTC (Sun) by dkite (guest, #4577) [Link] (2 responses)

I don't know how many times during my life as a hobby software developer,
where I've described what I'm doing to someone, and they suggest helpfully
that I protect what I have so that no one can steal it.

And the number of times I've heard in conversation of how someone got a
patent on a good idea and got good money for it.

Within the legal context, within business accounting context, some value,
some ownership, a title of some kind is placed on everything. Copyright
has proven almost worthless as protection; anyone can write equivalent
functionality of what you have produced in quite short order.

Especially when everyone sees the 'high tech industry' as a gravy train,
source of economic growth and prosperity, etc. etc.

I work in a service industry where the information in my head, and my
experience is the source of value. If something goes wrong, I have, from
experience, the ability to get things working again. That includes
diagnosis, sources of parts, wherewithall to get it working. Not unusual
or uncommon. Lots of people do similar things that I do across all
industries.

The lawyer we use mentioned in passing that he would be interested in
investing in what we do. My employer laughed at him and said you don't
have a ******* clue what we do. A few years ago there was a bunch of
investment money that bought up firms like us. But what would they be
buying? A promise that I'll work for them? There is nothing to buy.

The problem is that the individuals who can produce software are
relatively rare, and few understand what they do; what they produce has
value; and someone else wants to own them. Without the developers, they
have nothing. What is there to buy? So this artificial legal deed is
created. In itself it has no value.

Free software is a profound challenge to the whole edifice. If there is
value, it is in the implementation. The value goes to those who build it,
who maintain it and who use it. Once it isn't used, there is no value at
all. A reasonable reflection of reality. But there has to be a deed, there
has to be some rent, there has to be some owner.

Derek

An afternoon among the patent lawyers

Posted Mar 22, 2009 17:26 UTC (Sun) by jordanb (guest, #45668) [Link] (1 responses)

> Copyright has proven almost worthless as protection; anyone can write
> equivalent functionality of what you have produced in quite short order.

Copyright is excellent protection for the work done in software when you understand that the real work in software is producing functional, working, reliable code. The work is embodied in the completed software, not the clever or unique bits.

You're right that copyright doesn't protect you against anybody duplicating all your work -- just like a property claim to a farm doesn't prevent someone from taking up farming on an adjacent parcel of land -- but that's a benefit rather than a deficiency of the regime.

An afternoon among the patent lawyers

Posted Mar 23, 2009 13:38 UTC (Mon) by pboddie (guest, #50784) [Link]

You're right that copyright doesn't protect you against anybody duplicating all your work -- just like a property claim to a farm doesn't prevent someone from taking up farming on an adjacent parcel of land -- but that's a benefit rather than a deficiency of the regime.

Indeed. The strength of copyright as a measure of "protection" is in its focus on concrete works. Thus, infringement can be proven in a relatively indisputable fashion because actual artifacts will surface in the course of uncovering such infringement. In contrast, patent infringements often appear to rely on the opportunistic claim that "they do the same thing, so they must have stolen the idea from us", even if the supposedly infringing party did all the work themselves (thus illustrating the injustice of granting patent monopolies in the first place).

As for people "duplicating" work, there are two ways this can be done: people taking a work and, say, porting it to another language; people looking at what a work does and making another work which does the same thing. The former case is arguably a "translation" of a work and should be considered a derived work of the original - already well-established concepts related to copyright, as anyone translating a Harry Potter book to another language and calling it "A Wizard's Tale" would discover.

Now some people might have problems with the latter style of "duplication", since this might well be employing the same algorithm, which some people might regard as special, and some people may then seek to advocate patents to "protect" such algorithms or processes. However, it is important for such people to understand, as has already been said, that "the real work in software is producing functional, working, reliable code". In addition, there is something unethical about monopolies on algorithms given that a sufficient description of an algorithm is likely to be at the level of mathematics (which should not be patentable), and any algorithm described in complete detail is likely to be a concrete work (which should be subject to copyright).

What the "worthless as protection" remark really refers to is the inability of an organisation to monopolise a field using only the physical, inanimate assets produced by its employees, when those employees can take their knowledge and reproduce similar assets elsewhere (albeit at the cost of time and money). Perhaps that is why certain kinds of organisations would rather concentrate on having paper monopolies (patents) instead of nourishing the real value in their organisations: the employees.

An afternoon among the patent lawyers

Posted Mar 22, 2009 17:43 UTC (Sun) by lonely_bear (subscriber, #2726) [Link]

I think as a profession, lawyers have crossed the line too far from just protect justice are done. In stead they become a greedy group and bow to money. Asking patent lawyers to talk about the validity of software patent is like asking a tiger that would he give out his skin.

An afternoon among the patent lawyers

Posted Mar 23, 2009 1:49 UTC (Mon) by dwheeler (guest, #1216) [Link]

Of course patent lawyers are for software patents. As I believe Upton Sinclair said, "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" ("I, Candidate for Governor: And How I Got Licked" (1935), ISBN 0-520-08198-6; repr. University of California Press, 1994, p. 109. Cited in http://en.wikiquote.org/wiki/Upton_Sinclair )

An afternoon among the patent lawyers

Posted Mar 23, 2009 10:35 UTC (Mon) by Richard_J_Neill (subscriber, #23093) [Link]

There's a lot of talk about protecting one's "intellectual property", but what about protection *from* intellectual property? Instead of casting the debate in terms of "I have an idea, let's stop anyone stealing it", how about "I have an idea; I want the freedom to exercise it without restraint".

Remember, there is no fundamental property right to ideas. The patent is a time-limited monopoly, granted to inventors (despite the inherent harm in monopolies), as a concession to encourage them to produce more useful-works.

An afternoon among the patent lawyers

Posted Mar 23, 2009 12:46 UTC (Mon) by dberkholz (guest, #23346) [Link] (1 responses)

It would be nice to have patent terms depend on the rate of innovation in a field. For example, perhaps in pharmaceuticals where a development cycle might take 10-15 years and costs are recovered in the next 20, things should be different than in software, where many things done just 5 years ago are obsolete.

Also FYI, Mark Lemley (who made many of the good points) is a top-notch guy who's written multiple books on the topic: "Intellectual Property in the New Technological Age" and "Software and Internet Law."

An afternoon among the patent lawyers

Posted Mar 25, 2009 13:50 UTC (Wed) by job (guest, #670) [Link]

That's a bit silly. Most important software is probably 20 years old, from the COBOL-snippets calculating your tax returns to the routing engines around the Internet. You could probably just as well argue the opposite, that 20 year old medicines are commercially useless today, which would be just as (un)true depending on which specific examples you choose.

ad hominem

Posted Mar 23, 2009 17:00 UTC (Mon) by zooko (guest, #2589) [Link] (2 responses)

Dear Editor:

Thank you for writing up this event, which I wanted to attend myself but was unable. As usual, you've done us all a service by writing a readable and substantive summary. I'm glad that real journalism is not dead. However, when covering this particular topic and these particular people, you have not kept up your usual standard of constructive rhetoric that you employ when covering open source hacker flamewars.

Throughout this article you engage in ad hominem, which cheapens the discourse and distracts from potentially valuable points. Here's a clear example:

"Michael Muerer made the claim that almost every industry in the US would be better off if the patent system were to be abolished; in other words, patents serve as a net drain on the industry. But, being a patent attorney, he does not want to abolish the patent system; instead he would like to see reforms made."

Are you sure that the reason he does not want to abolish the patent system is that he is a patent attorney? Maybe he also has other reasons which we could learn from.

ad hominem

Posted Mar 26, 2009 4:15 UTC (Thu) by aszs (subscriber, #50252) [Link] (1 responses)

"It's hard to make a person understand something when his salary depends on him not understanding it." -- Upton Sinclair

ad hominem

Posted Mar 26, 2009 13:01 UTC (Thu) by NRArnot (subscriber, #3033) [Link]

It's hard to make a person understand something when his salary depends on him not understanding it.

Which is why particular note should be taken of patent lawyers being critical of the existing system of software patents. It is not in their personal financial interests to express such criticism, quite the contrary. Legislators should listen to them even if they won't listen to us. Even if they won't go as far as abolishing software patents, it shouldn't hurt to address the patent lawyers' criticisms (of far too many patents being issued on "inventions" of doubtful non-obviousness and probable prior art).

And it's an interesting idea that the problem arises because no body of prior art (expired patents) was allowed to be created in the early days of computing. Patents were indeed invented as a lesser evil than trade secrecy and the death of ideas with their posessor. I guess we may get to find if this view is right a decade or two from now, if the system is reformed to invalidate nebulous and obvious claims, and when the surviving current patents have expired.

A bit too much 'US only'

Posted Apr 2, 2009 9:58 UTC (Thu) by renox (guest, #23785) [Link]

[[ Software is an engineering field, according to Duffy, and no engineering field has ever been excluded from patent protection. ]]

Well in Europe, 'pure' software patents are forbidden..
So some countries do exclude some engineering field from patents.

Could there be a more wrong group to give an opinion

Posted Apr 6, 2009 22:00 UTC (Mon) by alext (guest, #7589) [Link] (1 responses)

Strikes me the last people who should be talking about patents are patent lawyers. There's a clear, blatant and comical conflict of interests!

The only people to be commenting should really be the public as socially patents are granted by them (notionally) for their benefit.

Could there be a more wrong group to give an opinion

Posted Apr 10, 2009 14:33 UTC (Fri) by stumbles (guest, #8796) [Link]

Agreed, such a situation is the proverbial Fox+Hen house situation.

An afternoon among the patent lawyers

Posted Apr 10, 2009 14:31 UTC (Fri) by stumbles (guest, #8796) [Link]

Of course they think you should patent software. For one, it would further ensure job security for them, not that they need anymore. Second, it helps to be completely clueless as to just what software really is. You should not be able to patent software any more than you can patent a novel.

Nothing about penalties...

Posted Apr 10, 2009 16:04 UTC (Fri) by cjcoats (guest, #9833) [Link]

One of the real problems about the current IP regime is the lack of penalties for wilfully abusing the system. I didn't hear anything in the article about punishing such abuse.

At a start, the penalties -- for both patent abuse and for copyright abuse -- should be at least as severe as the penalties for infringement. And the public should be given standing to sue in such matters, since it is clear the Feds can't/won't enforce this sort of thing.

When a patent doesn't pass the "obviousness" test, or when a compentent practitioner in the field should have known of prior art, not only should the patent be thrown out, but also other parties to a suit (either as defendants against suit brought by the abuser) or as plaintiffs (and we all should be given standing to bring such suits), the abuser should be forced to pay the other party damages equal to what the abuser would have paid if he had committed patent infringement with the so-called invention.

And similarly for fraudulent claim of copyright (a practice rampant among, e.g., publishers of classical music; the only honest classical-music publishers I know are Kalmus and Oxford U Press).

Ignoring the Constitution?

Posted Apr 11, 2009 0:25 UTC (Sat) by hozelda (guest, #19341) [Link]

>> Beyond their basis in legislation, patents should, according to the US constitution, serve to encourage innovation in their field.

Can someone explain to me this apparent assumption by this lawyer (and likely by many others) that Congress can make any laws it wants and for whatever reason?

I didn't find support for this view from reading parts from: http://www.law.cornell.edu/constitution/constitution.over...

Read Amendment 9 and 10.
Read Article 1 (Congress) Section 1 and Section 8

Finally, read carefully within section 8:
" To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

To me this is such an important point, and I don't see their angle. It seems to me that monopoly grants must promote the progress of science and useful arts or else would likely be unconstitutional.

Now, if patents must promote the progress of science and useful arts, then the better arguments (from what I have heard) show, not only that patent law is horribly broken, but that granting of monopolies for software is also unconstitutional in probably almost every case (except pretty much *at most* for a very small number of years or months).

[IANAL nor a hobby student of law. I am however angry and shocked at this software patent thing, and I am trying to put words to my frustration.]